Friday, September 15, 2006

Judge says: `Simon, take one step back.'

Cook County Judge Evelyn B. Clay today denied a petition for post-conviction relief filed on behalf of Alstory Simon (pictured)
, who pleaded guilty in April, 1999, in a double-slaying case that was pivotal in the death-penalty reform movement in llinois.

Simon's dramatic confession and guilty plea to shooting to death a young couple in a Chicago park in 1982 led to the exoneration of Death Row inmate Anthony Porter. Porter had come within two days of being executed for that crime, and Porter's story had a profound influence on then Gov. George Ryan's decision to launch the official investigation into capital justice that led to the blanket communtation of all death sentences in Illinois in 2003.

But Simon says he was hoodwinked into confessing; that a conspiracy among activists, academic and private investigators and his own attorney cause him to plead guilty to a crime he didn't commit.

I won't go into all the background in this space, but here is Simon's recent legal petition containing all his claims, here is a rebuttal to that petition by Northwestern University journalism professor David Protess ; here is my column questioning the motives of the attorneys who are helping Simon and here is my column of last month explaining why I hoped Judge Clay would grant Simon's petition.

She didn't. In a 13-page ruling she rejected Simon's request for an evidentiary hearing to explore the issues his attorneys have raised and praised the "excellent" plea bagain negotiated for him by attorney Jack Rimland.

As for Simon: "His claim has no merit," she concluded.

"We are stunned, disappointed, and surprised by Judge Clay’s refusal to grant Alstory a hearing in the face of compelling evidence that he was represented by an obviously conflicted attorney and even stronger evidence that he did not commit the murders for which he is in prison," wrote James Sotos, one of his attorneys, when I asked him for comment. "Nonetheless, we believe in Alstory’s innocence and will continue to fight for him until he is exonerated, and we will promptly begin preparing our appeal."

Here are excerpts from Judge Clay's ruling:

Petitioner claims his attorney provided ineffective assistance of trial counsel due to a conflict of interest and a failure to investigate. These claims were raised in his first post-conviction petition which was dismissed and upheld on appeal.

In examining petitioner’s claims of ineffective assistance of counsel, this court follows the two-pronged test of Strickland v. Washington ….Under this standard, petitioner must show that counsel’s representation fell below an objective standard of reasonableness and that but for this deficiency there is a reasonable probability that the counsel’s performance was prejudicial to the defense.… Further, counsel’s strategic decisions will not be second-guessed… The court find no “new evidence to support the conflict of interest claim. Rather, additional minutia clothe the original claim. Had petitioner previously brought forth this “new evidence” of said conflict, there is scant probability he would have prevailed....

In affirming the dismissal of petitioner’s first post-conviction petition, the Illinois Appellate Court, First District, noted, after finding his plea to be voluntary, that petitioner was “intent on pleading guilty. “Petitioner’s contention that he would not have pled guilty if he was aware of the evidence that originally implicated Porter are insufficient to show prejudice under Strickland….

Petitioner claims his plea of guilty was not voluntary. Yet following the entry of the guilty plea, petitioner did not challenge its voluntariness, file a motion to withdraw the plea or raise the voluntariness of his guilty plea on direct appeal.

In fact, petitioner did not file a direct appeal. Moreover, the trial court duly admonished petitioner prior to accepting his plea. Petitioner does not rely on any newly discovered evidence or other material outside the record. He previously raised the issue in his prior, post-conviction petition which was dismissed and upheld on appeal….This claim in now barred by res judicata. Many months passed between petitioner’s confession to Paul Ciolino, a private investigator who was not an agent of the State, and his guilty plea. At no time did petitioner claim he was innocent. When petitioner pleaded guilty, he waived all constitutional defects in his case.

It is well settled law that a voluntary guilty plea waives all errors, defects (and) irregularities in proceedings that are not jurisdictional, including constitutional errors….. The Illinois Appellate Court stated petitioner’s recurring issues regarding the alleged involuntariness of his guilty plea and any possible coercion could have been raised in a direct appeal since he was aware of all the relevant facts surrounding the circumstances of the plea. This claim is now barred by res judicata and collateral estoppel.

Petitioners are barred from retrying issues actually litigated and decided in a collateral proceeding. Thus petitioners’ due process violation claim has no merit.

Petitioner claims he entered a plea of guilty upon the erroneous advice of trial counsel (Jack Rimland). It is well-established that, even though a petitioner entered a plea of guilty because of some erroneous advice by his counsel, this fact alone does not defeat the voluntary nature of the plea…

Petitioner points out his wife, Inez Jackson, and her nephew, Walter Jackson, have now recanted their testimony (that) implicated him. Also, the grand jury witness testimony that formed the factual basis of his plea was inaccurate. Instead of three witnesses identifying him at the scene of the crime, there was only Walter Jackson, who has now recanted his testimony.

Petitioner also alleges his wife, Inez Jackson, and her nephew whose statements implicated him in the double murders have now recanted. But for their statements, he would not have confessed to the double murder.

Recantations are inherently unreliable and do not constitute new material evidence. Recantations are often deemed unreliable and recantations containing admissions of perjury are highly unreliable.

Both Inez Jackson and Walter Jackson have severely impaired credibility rendering their recantations untrustworthy. Moreover, contrary to his assertion, from the proffer presented at petitioner’s plea, a sufficient factual basis was presented.

Petitioner confessed to the double homicide.

At his sentencing hearing, he apologized extensively to Marilyn Green’s mother. He additionally apologized to Anthony Porter for spending 17 year on Death Row for petitioner’s crime. Despite his wife and her nephew’s recantations, which are inherently unreliable, petitioner’s actions speak for themselves....

Petitioner has not offered evidence of erroneous legal advice given him by his trial counsel. In fact, his trial counsel negotiated an excellent plea bargain for him. He received a 37-year imprisonment for the double murder, where his case was eligible for the death penalty or mandatory life imprisonment.

Anthony Porter had received the death penalty (for the same crime). Furthermore, his attorney also obtained immunity from prosecutions for a Milwaukee homicide in which petitioner was a suspect …the 1993 shooting death of Felix Bello. Consequently, petitioner has failed to establish any deficiency in counsel’s advice...

.The “newly discovered evidence” in petitioner’s case consists of his wife’s recantation and her nephew’s recantation. It is further apparent that petitioner has failed to demonstrate that any prejudice inured from the failure to assert this claim earlier. Had both recantations been included in his first post-conviction petition, there is scant probability the claim would have prevailed. Thus, petitioner has suffered no prejudice, nor has he made a substantial showing that his constitutional rights were violated.

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I favored a ruling of having a full evidentiary hearing just to be sure that Alstory Simon did in fact received adequate and ethical representation. But after reading excerpts of the judge's ruling, it's somewhat understandable why she dismissed his petition altogether. Apparently, Simon had ample opportunity prior to his conviction to make the court aware that he wanted to change his plea.

This petition, in my view, was strictly an attempt to discredit the hard work of the people who helped to free Anthony Porter and others.

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